There’s an odd footnote in the White Paper the Administration released to justify its Section 215 dragnet.

3 The word “tangible” can be used in some contexts to connote not only tactile objects like pieces of paper, but also any other things that are “capable of being perceived” by the senses. See Merriam-Webster Online Dictionary (2013) (defining “tangible” as “capable of being perceived especially by the sense of touch”) (emphasis added).

I’m interested in it because it seems to prepare us all to discover that the Administration has been getting things–like DNA, screen captures, and similar–with Section 215 that are absurd.

To create this dragnet, after all, the Administration has had to blow up the meaning of “relevant” beyond all meaning. And they had to dig up an old British tome for this particular, all-important definition?

So I looked up how the American Merriam-Webster online dictionary defines “relevant.” Here are the first two definitions:

a : having significant and demonstrable bearing on the matter at hand

b : affording evidence tending to prove or disprove the matter at issue or under discussion <relevant testimony>

“Having significant and demonstrable bearing on the matter and hand.” Not, “possibly maybe having a teeny fraction bearing on the matter and hand.” But a “significant and demonstrable bearing” on a terrorist investigation, in context.

So the Administration apparently looked up “relevant,” discovered it proves our point — that their use of the term is totally ridiculous — and kept digging through old dictionaries until they could find one that proved their point. (Update: Read this entire comment from Adam Colligan for more on what the dictionaries say.)

The John Yoo torture memo was like this as well. It was not a legal argument but a legalistic excuse. That is he did not determine what was legal but instead for form an excuse for what they already decided to do that sounded vaguely like an argument.

If you have to resort to different dictionaries, and old editions at that, you are not being asked to clarify what is legal. You are being asked to find an excuse for what you’ve already done and will do again and again and again.

I wanted to check they had used the 1989 edition whole rather than butchering it with omitted ellipses (not sure which would be worse), but it’s the former. The full 1989 version of that definition is:

“Bearing upon, connected with, pertinent to, the matter in hand.”

Fun fact: between 1989 and 2007, the OED moved the old 3rd definition of “relevant”, which is its use in Scots Law, up to the number 1 spot, apparently having found a use of it that is earlier than any other in the language.

“The said balȝeis askit the said forspeikaris to schaw the king kez or ony wthir relouand caus that thai had to obiect aganis the said breif.”

Also, here is what the OED says about “tangible”, lest you were wondering why they chose not to use it:

A. adj.
1.a. Capable of being touched; affecting the sense of touch; touchable.
b. (a) Hence, Material, externally real, objective.
…(irrelevant def)…
2. That may be discerned or discriminated by the sense of touch; as a tangible property or form .
3. fig. That can be laid hold of or grasped by the mind, or dealt with as a fact; that can be realized or shown to have substance; palpable.

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Black’s Law Dictionary defines relevant as:

Applying to the matter in question; affording something to the purpose. Fact is relevant to another fact when, according to the common course of events, existence of one or taken in connection with the other fact, renders existence of the other more certain or more probable.

Black’s Law Dictionary defines relevant evidence as:

Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Just saw this amicus brief from a bunch of law professors in the EPIC suit. Here’s part of what they have to say about “relevant.”

FISA also does not define what makes a tangible thing “relevant” to an authorized investigation. Merriam-Webster’s Collegiate Dictionary defines “relevant” to mean “having
significant and demonstrable bearing on the matter at hand” or “affording evidence tending to prove or disprove the matter at issue or under discussion . . . . ” Merriam-Webster’s Collegiate Dictionary, “Relevant,” 1051 (11th ed. 2004).

During a House Judiciary Committee hearing on July 17, 2013, the author of § 215, Representative James Sensenbrenner (R-WI) stated that Congress revised the statute in 2006 to impose the relevancy requirement in “an attempt to limit what the intelligence community could be able to get pursuant to Section 215.” Oversight of the Administration’s use of FISA Authorities Before the H. Comm. on theJudiciary, 113th Cong. (July 17, 2013) (comments of Rep. James Sensenbrenner).

“..I’m interested in it because it seems to prepare us all to discover that the Administration has been getting things–like DNA, screen captures, and similar–with Section 215 that are absurd…”

and fingerprints and eyerises :)) and photographs

not to mention the highly “relevant”

– criminal records

– medical records

– prescription records

– bank records

– drivers licenses

– court records

this discovery, coupled with the backdoor/loophole authorization, might be the discovery that shifts the debate from the very weak and foolish defense of electronic spying “well, you haven’t caught us reading your mail or listening to your phone conversations (yet),

to “jesus, you bastards are not just copying and holding our phone conversations; you are creating entire dossiers on some or all of us.”

bad as that may be, i predict more bad is yet to come, specifically, there is no reason to think nsa’s special operations division did not operate outside the law. i would guess they routinely kept tabs (dossiers?) on any potential political opponent, e.g., wayden and udall and feingold.

i also can’t imagine nsa passing up the anti-war protesters outside arbolito’s crawford ranch, or the occupy movement. perhaps that’s why the latter was wrapped up so suddenly in city after city.

@emptywheel: I think the related corollary term is “materiality”. It is really not the right term, but many “relevance” arguments seem to fall back to some extent to materiality. As with so many things, it eventually boils down to what a court says it is in the fact specific proceeding and stage at bar.

i wonder if the model for what nsa is doing to u.s. citizens now
(despite denials)

is what the u.s. military did in iraq to iraqui civilians and militants, involving data bases with multiple points of info about each individual in the data base including biological info.

in any event my guess at the moment is that the nss data base on americans is not really focused on “terrorism” nor “cyberwarfare”.

it is focused on, and was intentionally built as, a cyber machine to aid, policing the u.s. at a national level with the fbi (and possibly our interior ministry, dhs) being the main nsa client.

this might explain why examples of terrorism and cyberwarfare defeated have been difficult for the masters of the nsa recording machine to document and why it existed in utmost secrecy until snowden blew its cover.

Interesting comment. I did cringe when I read the word “homeland” in the white paper. You know the lawyers are skating on thin ice when that term, with a lowercase “h” makes it into a published document. Really really hate that term and resent the idea that “terrorists” pose a threat to our “nation” as opposed to “safety, well-being, life, etc.” of our people. Big difference.

To add a further wrinkle to this, it is worth noting that the same DOJ that makes the “relevance” argument in this context argues that a discovery request or FOIA request seeking “all records relevant to” a topic is hopelessly overbroad because “everything is related to everything else.” This, in my opinion, is the unspoken legal theory that really lies at the core of the government’s defense of the NSA program, and hinted at in its choice of dictionary definitions. The DOJ unabashedly uses the presence of the terms “pertaining to” or “relating to” as a per se reason for finding that a request is overbroad (in legal terms, “does not reasonably describe the records sought”) because “A request for ‘all documents ‘relating to’ a subject is usually subject to criticism as overbroad since life, like law, is a ‘seamless web,’ and all documents ‘relate’ to others in some remote fashion.” (An actual quote from a DOJ FOIA brief, pulled from a Massachusetts district judge’s footnote paraphrasing Oliver Wendell Holmes).

If the government’s position is that a FOIA request for “all CIA records pertaining to the Six Days War” is actually a request for every record the CIA owns (CIA’s actual legal position), because all of its records “relate to” the Six Days War “in some remote fashion,” is it a surprise that its position is that all records about phone calls are “relevant to” any investigation? I’ll be the first to admit, if the government actually had to apply the “relevance” standard it uses for 215 warrants to FOIA requests, those requests would be pretty darn broad. I of course would suggest applying a narrower standard in both contexts, but what do I know? As the DOJ routinely points out, anything I say to a court about anything involving an intelligence agency should be fully disregarded because I am “not constitutionally charged with protection of national security” (another actual quote from a recent DOJ brief). Because, as any first-year law student knows, being constitutionally charged with protection of national security is a required prerequisite for reading a dictionary.

@Kel: Hi Kel, welcome to our little corner of the internet. I too thought about FOIA here. And about god knows how many discovery requests – civil and criminal – where the same frame came into play. The old “is it really material, or is this a ‘fishing expedition'” test.

I like the narrower, focused and demonstrable standard for both sides you seem to suggest. Easy for me to say, discovery is already held to that by the courts; may impinge on your FOIA practice though.

@bmaz: I’m more than happy to suffer through the “impingement” on my FOIA practice if it means that this will never happen again:

In Count Ten, NSC alleges that the CIA wrongfully declined to process its FOIA request for “all” CIA records “pertaining to the IBM supercomputer named ‘Watson.'” . . .

“A request for all documents ‘relating to’ a subject is usually subject to criticism as overbroad since life, like law, is ‘a seamless web,’ and all documents ‘relate’ to all others in some remote fashion.” Commonwealth of Mass. v. U.S. Dept. of Health & Human Serv., 727 F. Supp. 35, 36 n.2 (D. Mass. 1989). “Such a request thus unfairly places the onus of non-production on the recipient of the request and not where it belongs—upon the person who drafted such a sloppy request.” Id. As CIA explains in its declaration, NSC’s request for all documents pertaining to Watson is so general it would require the Agency to search every office. . . . Because NSC’s Watson request does not adequately describe the documents requested and NSC refused to refine the scope of its request, the Court should grant summary judgment to the CIA on Count Ten.

Side note: Don’t get me wrong, I don’t think the discovery standard is appropriate for FOIA requests; case law (except for the Mass. v. HHS case the CIA cites) is pretty clear that discovery’s relevance standard is too restrictive for FOIA. But just because the discovery standard is too restrictive doesn’t mean that a request for all records regarding bmaz is actually a request for all records in the entire federal government. There is still a reasonableness standard here, and it’s a lot closer to the discovery standard than it is to “every record relates to every other record.”